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IN THE SUPREME COURT OF JUDICATURE QBENI

96/0179/E

COURT OF APPEAL (CIVIL DIVISION ) QBENI 96/0180/E

ON APPEAL FROM THE HIGH COURT OF JUSTICE QBENI 96/0181/E

QUEEN'S BENCH DIVISION QBENI 96/0182/E

Royal Courts of Justice

Thursday, 27th February 1997

B e f o r e :

LORD JUSTICE HIRST

LORD JUSTICE MILLETT

LORD JUSTICE HUTCHISON

- - - - - - - -

GERALD MAPP

- v -

NEWS GROUP NEWSPAPERS LIMITED

and

BERNARD JAMES GILLAN

-v-

NEWS GROUP NEWSPAPERS LIMITED

and

ROBERT WATTON

-v-

NEWS GROUP NEWSPAPERS LIMITED

and

PAUL JOHN GOSCOMB

-v-

NEWS GROUP NEWSPAPERS LIMITED

(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-831 3183/0171-404 1400

Fax No: 0171-404 1424

Official Shorthand Writers to the Court)

- - - - - - - -

MR. J. PRICE Q.C. (instructed by Messrs Farrer & Co., London, WC2A) appeared on behalf of the Appellant/Defendant.

MR. T. SHIELDS Q.C. (instructed by Messrs Russell Jones & Walker) appeared on behalf of the Respondents/Plaintiffs.

- - - - - - - -

J U D G M E N T

(As approved by the Court)

- - - - - - - -

Crown Copyright

LORD JUSTICE HIRST: In actions for defamation where questions as to the meaning of the words complained of are in issue, as they nearly always are, the functions of the judge and the jury have always been different. It is for the judge to rule, when asked to do so, whether the words are capable of bearing a particular meaning or meanings alleged in the statement of claim; in other words, to lay down the limits of the range of the possible defamatory meanings of which the words are capable. It is for the jury to determine the actual meaning of the words within that permissible range. The rationale behind this division of function was described by Diplock LJ in Slim v. Daily Telegraph [1968] 2 QB 157,174 as follows:

"The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact."

Traditionally, any such ruling has been sought and given at the trial itself unless tried as a preliminary issue. Any earlier interlocutory proceedings were confined to a summons to strike out under O.18,r.19, which of course only applies in plain and obvious cases. However, by O.82,r.3(a), which came into force on 1st September 1994, it is now provided as follows, under the heading "Ruling on meaning":-

"(1) At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings.

(2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgment in the proceedings as may be just ...."

This new rule superseded the old O.18,r.19 procedure.

In the present case, the defendants applied under that rule to Sir Michael Davies, sitting as a judge of the Queen's Bench Division, for an order that the words complained of in the present case are incapable of bearing the meaning attributed to them in the statement of claim. He declined to do so. It is against that ruling that the present appeal is brought.

Before considering the facts of the present case, I wish to explore the proper approach to be adopted by a judge when a ruling under O.82,r.3(a) is sought. In Lewis v. Daily Telegraph [1964] AC 234, where the words complained of alleged that the fraud squad were inquiring into the affairs of the plaintiff company, Lord Reid, in his now classic judgment, stated as follows at page 258.

"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs....

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief, or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning....

Generally the controversy is whether the words are capable of having a libellous meaning at all, and undoubtedly it is the judge's duty to rule on that. I shall have to deal later with the test which he must apply. Here the controversy is in a different form. The respondents admit that their words were libellous, although I am in some doubt as to what is the admitted libellous meaning. But they sought and seek a ruling that these words are not capable of having the particular meaning which the appellants attribute to them. I think that they are entitled to such a ruling and that the test must be the same as that applied in deciding whether the words are capable of having any libellous meaning....

In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say, ´Oh, if the fraud squad are after these people you can take it they are guilty.' But I would expect the others to turn on him, and if he did say that, with such remarks as ´Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn't trust him until this is cleared up, but it is another thing to condemn him unheard.'

What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression."

In Jones v. Skelton [1968] 1 WLR 1360, a decision of the Privy Council, Lord Morris of Borth-y-Guest, giving the judgment of the Board, stated as follows:

"It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.... The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

Finally, in Morgan v. Odhams Press Limited [1971] 1 WLR 1239, Lord Morris of Borth-y-Guest described the role of the judge as follows:

"... the principle is just the same in defamation cases as in any other cases, that the judge in his control of the proceedings will not leave a case to the jury if the jury could not properly find for the plaintiff. So if a plaintiff complains that words which have been published of him are defamatory a judge will withdraw the case if he decides that the words complained of are simply not capable of bearing a defamatory meaning. He will decide whether a reasonable man could (not would) regard the words as defamatory. If they are capable of being so regarded then it will be for the jury to decide whether or not the words did bear a defamatory meaning."

In one passage in his judgment the judge said that it was the tendency of the court to leave a meaning to the jury unless it was a very clear cut case that it should be struck out. Mr. Price QC, on behalf of the appellants, criticised this passage and submitted that it introduced too high a threshold and appeared to hark back to the O.18,r.19 test. Mr. Shields QC, on behalf of the plaintiff, suggested that, in fairness to the judge, too much could be read into that short passage in his judgment. Mr. Shields rightly accepted that the test to be applied was that laid down in the authorities quoted above, without any of the restrictive criteria which apply under O.18,r.19. In my judgment, the proper role for the judge, when adjudicating a question under O.82,r.3(a), is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his own judgment in the light of the principles laid down in the above authorities and without any O.18,r.19 overtones. If he decides that any pleaded meaning falls outside the permissible range, it is his duty to rule accordingly. It will, as is common ground, still be open to the plaintiff at the trial to rely on any lesser defamatory meanings within the permissible range but not on any meanings outside it. The whole purpose of the new rule is to enable the court in appropriate cases to fix in advance the ground rules on permissible meanings which are of such cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the plaintiff's reputation, but also for the purpose of evaluating any defences raised, in particular, justification or fair comment. This applies with particular force in a case like the present where there is a defence of justification of a lesser meaning than that pleaded in the statement of claim.

I turn to the facts of the present case. Five police officers are plaintiffs in five separate actions against the defendant, News Group Newspapers Limited, in respect of the same publication in the News of the World on 2nd February 1992. The present ruling given in the case of PC Gerald Mann is being treated as binding in the four other cases of PC Gillan, PC Goscomb, PC Watton and PC Bennett.

The background facts are as follows. On 28th January 1992 eight officers, including the five plaintiffs, were transferred away from Stoke Newington Police Station during a major police investigation called Operation Jackpot into police corruption in Stoke Newington. All eight officers issued writs on 25th January 1995, just before the limitation period expired. Letters before action were received from the five plaintiff officers on various dates in January, February and March 1995. In due course, the five writs were served, though PC Bennett's was only served after the hearing before Sir Michael Davies. The three other officers out of the eight, Galbraith, Lyons and Palumbo, who were suspended from duty, did not serve their writs. Palumbo and Lyons were charged with conspiracy to pervert the course of justice. They were acquitted at trial in 1996.

The words complained of are as follows and were published in the bottom right hand corner of an inside page of the relevant issue of the News of the World. The heading in capital letters is "DRUG QUIZ COP KILLS HIMSELF". The article then proceeds:

"Police Sergeant Gerry Carroll killed himself after being ordered to provide information about ex-colleagues accused of peddling drugs. Sergeant Carroll, 46, shot himself through the head in a cell. He was custody officer with the drugs squad in Stoke Newington, north London, when eight fellow officers were alleged to have been involved in drug dealing and bribery. The accused officers have been transferred to other police stations while an investigation is carried out."

The pleaded defamatory meaning presently in issue is as follows:

"The said words and their natural and ordinary meaning meant and were understood to mean that the plaintiff was guilty of involvement in drug dealing and bribery, that Sergeant Carroll had been in a position to know this because he had been working with the plaintiff at the time and he had killed himself because he would otherwise have to confirm the plaintiffs' involvement."

Mr. Price QC, on behalf of the appellants, relying most particularly on Lord Reid's speech in the Lewis case, submits that no reasonably fair minded person, reading this item in the News of the World, would infer actual guilt as contrasted with suspicion, let alone actual guilt against all eight officers.

Mr. Shields relies on a passage from Lord Devlin's speech in the Lewis case as follows at page 281:

"It is not therefore correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: What is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."

He also relies on a passage from the judgment of Sir Thomas Bingham MR (as he then was) in Skuse v. The Granda Television Limited [1996] EMLR 278,290:

"The judge's distinction between negligence and reasonable grounds to suspect negligence may of course be properly made if the word complained of warrant it (as in Lewis's case where it was said that a company was the subject of a police inquiry), but it is a distinction more familiar to lawyers than laymen and it is not one which would in our judgment occur to the ordinary reasonable viewer of this hard-hitting, arresting, quickly moving television programme. Such a viewer would be left with the clear impression that Dr. Skuse had quite simply but very seriously fallen down on his job."

Mr. Shields submits that the words complained of have a number of striking features which he identified as follows:

(1) the headline alleges a causal link between Sergeant Carroll's suicide and the fact that he was about to face a drugs quiz. This causal link is again suggested in the first sentence of the text.

(2) The first line of the text establishes that the information which Sergeant Carroll had been ordered to provide related to "ex-colleagues accused of peddling drugs". There is no room for any suggestion that the required information related to Sergeant Carroll himself.

(3) The penultimate and final sentence of the text establishes that the officers about whom the information was required are the eight officers who have been alleged to have been involved in drug dealing and bribery and who have been transferred from Stoke Newington to other police stations whilst investigations are being carried out. There is no room for any suggestion that any other officers were to be the subject of Sergeant Carroll's interview.

(4) The penultimate sentence makes it clear that every one of the eight transferees had been alleged to have been involved in drug dealing and bribery.

(5) The final sentence establishes that the authorities have already taken the allegations sufficiently seriously to transfer the eight officers pending an investigation. When there is added to this the assertion in the penultimate sentence that Sergeant Carroll worked with them as custody officer on Stoke Newington Drugs Squad, (so that he would have been very well placed to know of any misconduct), and the assertion that he had shot himself because of the order to provide information about them, the reader could very well conclude, and in the plaintiff's submission would inevitably conclude, that the eight transferees are guilty and that Sergeant Carroll's information would have incriminated them.

He then submitted that, in contrast to the facts in the Lewis case, this is not a simple assertion that the eight officers are being investigated but rather an imputation that their sergeant on the drugs squad committed suicide rather than comply with an order to provide information about their activities. The implication that the officers have not yet been suspended or charged merely indicates that the investigation is continuing and that the authorities have not yet obtained evidence such as would justify such suspension or charge. There is, however, a strong implication that Sergeant Carroll would have provided such information but for his suicide. Consequently, there is no room for the defendant's contention that the information which Sergeant Carroll had been ordered to provide could have related either to himself or to officers other than the eight transferred officers. The words complained of make it clear that the information related to them and them alone.

Furthermore, the reasonable reader could very well conclude that all eight officers were guilty since the article suggested that all eight were accused, that all eight had been transferred pending investigation, that Sergeant Carroll had been the sergeant of all eight of them on the drugs squad at Stoke Newington Police Station, and that he had been ordered to provide information against all eight.

The proper question to ask, Mr. Shields submits, is what extra impression as to meaning, prejudicial to the plaintiffs, is to be gained by the reasonable reader from the prominent description in the article of Sergeant Carroll's suicide. The answer, he contends, is that it corroborates the impression to be derived from the references to the investigation and the transfer, and points the finger of guilt at all eight officers. Adopting Lord Devlin's words in the Lewis case quoted above, he suggests that it is not unreasonable to interpret this loosely worded article as conveying the broad impression that the suspicion of guilt affecting all eight officers is well founded; in other words, no smoke without fire.

Dealing first with the authorities cited by Mr. Shields, the case of Skuse broke no new ground but rather turned on the actual words used in the television programme, and applied the well established principles to those words in their context. The passages quoted from Lord Devlin's speech in the Lewis case are of course very pertinent, but they must be read in the context of a case where the House of Lords held unanimously that the reference to a fraud squad inquiry was incapable of imputing reasonable suspicion but not capable of imputing actual guilt. There is thus no question of Lord Devlin in that case sanctioning the double jump from inquiry via suspicion to guilt.

In my judgment, in the light of the Lewis case, it would be virtually unarguable to suggest that the words complained of here imputed actual guilt as contrasted with a reasonable suspicion of guilt unless, as Mr. Shields suggests, their meaning is transformed by the prominent reference to Sergeant Carroll's suicide. I do not think it has this effect since, to my mind, Sergeant Carroll's suicide could be interpreted by the reasonable reader in a number of different and perhaps more plausible ways; for example, that he himself had something to hide which would come out if he had to respond to his superior's order, or that he was overwhelmed by stress or depression. As Lord Blackburn said in a celebrated passage in Capital & Counties Bank v. Henty [1882] 7 AC 741, 746:

"... it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document."

If one imagines a conversation similar to that portrayed by Lord Reid in the Lewis case and assumes that one member of the group put forward Mr. Shields' meaning, surely others would reply: "Steady on. There might be all sorts of other explanations. Of course it makes the whole affair look much more suspicious, but we should not jump to any conclusion until we know more about the circumstances of Sergeant Carroll's death and about the progress of the investigation; and remember, the officers have only been transferred to other duties, not even suspended, let alone charged."

Consequently, I would hold that the words are incapable of imputing actual guilt, as contrasted with suspicion, to any of the eight officers.

If, however, I were wrong and it does impute guilt to at least one officer, I would find it quite impossible to think that the reasonable reader would jump to a further conclusion that it affected all eight of them, which would be essential before any one of them would be entitled to rely on the suggested meaning.

It follows that, in my judgment, the words complained of are incapable of bearing the meaning alleged.

I would therefore allow this appeal. I would only add that it is not in dispute that the words are capable of imputing reasonable suspicion against all eight officers, and Mr. Price realistically acknowledged that Mr. Shields should have no difficulty in obtaining leave to make the appropriate amendment if he wishes to do so.

I would like in conclusion to thank both counsel for their admirable arguments.

LORD JUSTICE MILLETT: I agree.

LORD JUSTICE HUTCHISON: I also agree.

Order: Appeal allowed; costs to be the appellant's costs in the Court of Appeal and costs in the sum of two-thirds in the court below; application to amend refused.